Opinion
F083438
12-16-2022
THE PEOPLE, Plaintiff and Respondent, v. JAMES RILEY THURMAN, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF60772. Frank Dougherty, Judge. (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant James Riley Thurman was charged with driving with willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer (Veh. Code, § 2800.2 [count I]); willful driving in the direction opposite lawful traffic while fleeing from a pursuing police officer (id., § 2800.4 [count II]); and misdemeanor driving with a suspended license (id., § 14601.2, subd. (a) [count III]). In connection with counts I and II, the information alleged that (1) defendant was previously convicted of robbery and reckless driving proximately causing great bodily injury, both qualifying "strikes" under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12); (2) he served three prior separate prison terms (§ 667.5, former subd. (b)); and (3) he committed these charged felonies while he was released from custody on his own recognizance (§ 12022.1). In connection with count III, the information alleged that defendant was convicted of driving with a suspended license on three prior occasions.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Following trial, the jury found defendant guilty as charged on counts I and III and not guilty on count II. In a bifurcated proceeding, the trial court found true the allegations pertaining to defendant's prior convictions. Thereafter, the court granted defendant's Romero motion in part and struck the prior robbery conviction allegation. Defendant received an aggregate sentence of six years: a doubled upper term of six years on count I and a concurrent year on count III.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant makes numerous arguments. First, the evidence did not support the reckless evasion conviction on count I. Second, the trial court did not properly instruct the jury on reckless evasion; alternatively, defense counsel rendered ineffective assistance by failing to object thereto. Third, the court failed to instruct the jury on lesser included offenses of reckless evasion. Fourth, the evidence did not support the court's finding that defendant's prior conviction for reckless driving proximately causing great bodily injury qualified as a strike. Fifth, in view of a recent amendment to the determinate sentencing law, enacted by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) (Stats. 2021, ch. 731, § 1.3) and effective January 1, 2022, the matter should be remanded for reconsideration of sentencing. Sixth, the court erroneously excluded evidence that the peace officer involved in the incident underlying the charged offenses was subsequently fired. Seventh, the court abused its discretion when it denied defendant's request for a continuance to file a Pitchess motion. Finally, the court erroneously discharged a juror after the matter had been submitted to the jury for deliberations.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The Attorney General concedes the evidence did not support defendant's reckless evasion conviction. We accept this concession. The parties agree-as do we-that this concession renders moot defendant's claims of instructional errors, ineffective assistance of counsel, insufficient evidence regarding the truth of the strike allegation, and resentencing pursuant to Senate Bill No. 567. We further conclude: (1) the court did not abuse its discretion when it excluded evidence of the pursuing officer's termination; (2) the court did not abuse its discretion when it denied defendant's request for a continuance; and (3) the record supported the juror's disqualification as a demonstrable reality.
STATEMENT OF FACTS
On the evening of June 25, 2019, Deputy Lee of the Tuolumne County Sheriff's Office was on patrol in Jamestown. He was driving a black and white vehicle equipped with a siren and "red forward-facing light[s]" and "fully marked" with the words "Tuolumne County Sheriff's Office." At approximately 7:55 p.m., Lee observed defendant operating a motorcycle without a helmet. When defendant noticed Lee, he accelerated. In response, Lee activated the siren and lights and pursued defendant for over two miles. However, defendant escaped when he entered a "goat trail" and Lee- who "ran out of roadway"-exited his vehicle and "couldn't keep up with the motorcycle" on foot. Thereafter, Lee requested a records check and learned that defendant's driver's license was suspended.
DISCUSSION
I. The Attorney General concedes that defendant's felony conviction on count I must be reversed.
"A person violates [Vehicle Code] section 2800.2 if he 'flees or attempts to elude a pursuing peace officer in violation of [Vehicle Code s]ection 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property.' [Citation.] [Vehicle Code s]ection 2800.1 provides that a person operating a motor vehicle is guilty of fleeing or attempting to elude a pursuing peace officer's motor vehicle if all of the following conditions exist: (1) the peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp; (2) the peace officer's motor vehicle is sounding a siren as may be reasonably necessary; (3) the peace officer's motor vehicle is distinctively marked; and (4) the peace officer's motor vehicle is operated by a peace officer, and that peace officer is wearing a distinctive uniform. [Citation.] 'Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.' [Citation.] The prosecution must prove each element beyond a reasonable doubt. [Citation.]" (People v. Byrd (2016) 1 Cal.App.5th 1219, 1222-1223 (Byrd).)
"For purposes of [Vehicle Code] section 2800.2, 'a law enforcement officer's "distinctive uniform" is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.' [Citation.] 'The statute does not require that the uniform be of any particular level of formality or that it be complete.' [Citation.] Nor does the statute require that the person eluding capture actually see that the police officer is wearing a distinctive uniform. [Citation.]" (Byrd, supra, 1 Cal.App.5th at p. 1223.)
Respondent states in its brief that it "can find no evidence in the record documenting what Lee was wearing at the time of the evasion, let alone that he was wearing a distinctive uniform," and concedes that "[defendant]'s evasion conviction is not supported by sufficient evidence and . . . must be reversed." We agree and accept this concession.
Although we cite the majority opinion in Byrd, we find Justice Hull's concurring and dissenting opinion compelling. While acknowledging that evidence of a pursuing law enforcement official wearing a distinctive uniform is an element of Vehicle Code section 2800.1, he emphasized the defendant repeatedly testified that he knew he was fleeing from the police. (See Byrd, supra,1 Cal.App.5th at pp. 1226-1228, 1232-1233 (conc. & dis. opn. of Hull, J.).) Justice Hull remarked: "While admittedly there was no evidence presented at trial that the pursuing law enforcement officers wore a distinctive uniform, even though that is an element of the offense, not holding [the] defendant to his plain, unambiguous and repeated admissions that he knew he was fleeing from police officers and leading them on a dangerous chase distorts the criminal justice system." (Byrd, supra,1 Cal.App.5th at p. 1233 (conc. & dis. opn. of Hull, J.).) Put another way, the purpose of the "distinctive uniform" requirement is to dispel any doubts that the fleeing driver is aware of the official status of the pursuing driver. Thus, the unequivocal admission by a fleeing driver that he was aware of such should suffice. In the instant case, despite the prosecutor's assertion in closing argument that "[a]ll Mr. Lee said was, 'I was wearing my uniform,'" we find no testimonial evidence of such a statement in the record. In contrast to Byrd, defendant did not take the stand and there is no evidence that he expressed any awareness of Deputy Lee's official status.
II. The Attorney General's aforementioned concession renders many of defendant's arguments moot.
The Attorney General states that its concession "renders moot the other claims [defendant] raises as to his evasion conviction, specifically: . . . insufficient evidence . . . for an evasion conviction . . .; . . . the trial court erred by failing to instruct on the elements . . . necessary for an evasion conviction . . .; . . . ineffective assistance for failing to object to the evasion jury instruction . . .; . . . the trial court erred by failing to instruct on a lesser included offense to the evasion charge . . .; . . . insufficient evidence to sustain the trial court's finding that [defendant]'s prior [reckless driving proximately causing great bodily injury] conviction qualified as a serious felony . . . [;] and . . . [defendant] is entitled to the benefits of Senate Bill No. 567 . . . ." Defendant agrees, as do we.
III. The trial court did not abuse its discretion when it excluded evidence of Deputy's Lee's termination.
a. Background
Trial was set to commence on August 31, 2021. In a pretrial motion filed that day, the prosecution asked the trial court "to prohibit the introduction of the evidence of the reasons behind former Tuolumne County Sheriff's Deputy . . . Lee being dismissed from his job, pursuant to Evidence Code sections 350 and 352 . . . ." The motion specified:
"A year and a half after [the June 25, 2019 incident involving defendant], the Tuolumne County Sheriff's Office was investigating a domestic violence incident that occurred on or about December 28, 2020. The confidential victim's cell phone was extracted. During the investigation, it became known that Mr. Lee had investigated a prior assault of the victim in July of 2020. During the review of the victim's cell phone extraction, there was communication between the confidential victim and Mr. Lee that become flirtatious and sexual in nature. Professional Standards Sergeant Nikiforuk was immediately notified and an investigation commenced. After that investigation, the People have been advised that Mr. Lee is no longer employed by the Tuolumne County Sheriff's Office. The People have been advised by the Tuolumne County Sheriff's Office that the termination was not the result of a Brady qualifying issue. This information was provided to defense attorneys involved in cases in which Mr. Lee was a potential witness, in the form of an official letter (inviting counsel to file a Pitchess Motion should they desire), including to the Office of the Public Defender. Out of an abundance of caution, the defendant's attorney of record was specifically provided with the letter, in reference to this case, on August 17, 2021.
Brady v. Maryland (1963) 373 U.S. 83.
"The People are aware of the basic facts behind Mr. Lee's termination. The underlying situation involved inappropriate text communications between Mr. Lee and a woman, occurring in 2020. Upon the commencement of an investigation, Mr. Lee was contacted and admitted the communications. There has been no evidence or allegation of dishonesty on the part of Mr. Lee that would bring his honesty or veracity into question. In fact, it appears that Mr. Lee was forthright with the investigators about his texting relationship during their investigation.
"This case does not involve Mr. Lee and a potential relationship (textual or other) with a woman, nor does it have any domestic violence aspects. There is no evidence of any communications between the defendant and Mr. Lee via telephone or any other medium in this case. There is also no evidence that Mr. Lee engaged in any inappropriate conduct with anyone any time prior to the communications with the confidential victim (that occurred in 2020) and specifically during the time frame of this case.
"Any reference to the specific conduct of Mr. Lee, as it relates to the confidential victim, that resulted in his termination is not relevant here. There is no connection between his termination and this case. Therefore the facts surrounding his termination are not probative to any fact at issue. In addition, evidence that he was terminated would inevitably lead to the jury engaging in speculation as to why he was terminated and whether his honesty was at issue. Given that the defense in this case, aware of the basic circumstances of Mr. Lee's termination, has not seen fit to file a Pitchess Motion can be construed as a tacit admission that the evidence of his termination does not involve his honesty and is therefore not relevant. What the jury should be made aware of is that Mr. Lee is no longer employed by the Tuolumne County Sheriff's [Office] and that he is currently not employed in a law enforcement capacity.
"In addition to being irrelevant, information of his termination and the reasons behind it would be much more prejudicial to the People's case than probative, and would likely lead to an undue consumption of time. With regards to the former position, the current public antipathy to law enforcement would be inflamed by the allegations against Mr. Lee despite their having no relevance. As to the latter position, should the evidence behind Mr. Lee's termination be admitted, it would require the People inquire into the investigation to allow the jury to hear that Mr. Lee candidly admitted the inappropriate communications. That would open the door to cross-examination by the defense of investigators if they could convince the court that contrary evidence was available (and absent any Pitchess Motion there is no evidence that Mr. Lee was anything but candid with investigators)."
At a motion hearing, defense counsel contended:
"Now, part of [Deputy Lee's] background in law enforcement is to always, you know, not commit misconduct. He committed misconduct. He puts his credibility in issue. If he takes the stand, it should be allowed in. I think if I was the Court, maybe we don't use the word 'misconduct,' maybe use the word he was 'terminated' from the sheriff's department. I think that gives each side an opportunity to argue that for whatever value it's worth. But to exclude it completely, I wouldn't, but I'll leave it up to the Court."
The court ruled:
"All right. Well, the Court has considered what the Court knows as a result of this motion . . ., and based upon what the counsel have indicated, I don't see any - any dishonesty involved in the case where the deputy was terminated for his texting relationship with an alleged victim.
"Now, the issue in this case is whether or not he's truthful, that is, Deputy Lee is truthful, about seeing a vehicle, a motorcycle, and seeing the motorcycle violate various Vehicle Codes and failure to stop and his recognition of Mr. Thurman as the person who was driving. So I don't see any relevancy. And so I'm not necessarily - I don't necessarily need to get to a[n Evidence Code section] 352 analysis, but if I did get to a[n Evidence Code section] 352 analysis, the prejudice to the People far outweigh that to the defendant, and it would also include an undue consumption of time.
"So the motion in limine is granted. [The prosecution] may bring out that he's no longer terminated - he's no longer employed by the sheriff's office, and the reasons therefor[] I'm not going to allow either attorney to go into."
b. Analysis
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted (Clark).) "The California Supreme Court has divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a' "general readiness to do evil,"' from which a readiness to lie can be inferred. [Citation.] Crimes in the latter group are acts of 'baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' [Citation.]" (People v. Chavez (2000) 84 Cal.App.4th 25, 28-29.)" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.]" (Clark, supra, at p. 931; see Evid. Code, § 352 ["The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."].) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (Clark, supra, 52 Cal.4th at p. 931.) "[T]o the extent such misconduct amounts to a misdemeanor or is not criminal in nature, it carries less weight in proving lax moral character and dishonesty than does either an act or conviction involving a felony" (People v. Contreras (2013) 58 Cal.4th 123, 157, fn. 24) and "may involve problems involving proof, unfair surprise, and the evaluation or moral turpitude" (Clark, supra, at pp. 931-932). "Hence, trial courts have broad discretion to exclude impeachment evidence other than felony convictions where such evidence might involve undue time, confusion, or prejudice." (People v. Contreras, supra, at p. 157, fn. 24; accord, Evid. Code, § 352.)
"We review a trial court's decision to exclude evidence for abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 745.) "The decision to exclude evidence 'will not be disturbed except on a showing [that] the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].' [Citation.]" (Ibid.) In other words, "[a] court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]." (Clark, supra, 52 Cal.4th at p. 932; see People v. Brown (2004) 33 Cal.4th 892, 901 ["' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling . . ., itself correct in law, will not be disturbed on appeal merely because given for the wrong reason."' "].)
Here, the prosecution's motion in limine did not seek to exclude evidence of a prior criminal conviction. Instead, it moved to prohibit the admission of evidence that Deputy Lee and a purported victim in a domestic violence case unrelated to the one at bar communicated via text messages that were "flirtatious and sexual in nature." "If relevant, a court has discretion to admit evidence of a sexual relationship." (People v. Sanchez (2019) 7 Cal.5th 14, 54.) For example, such a relationship between a witness and a defendant could demonstrate possible bias in the latter's favor and potentially affect the former's credibility. (See id. at p. 55; People v. Sweeney (1960) 55 Cal.2d 27, 41; People v. Payton (1939) 36 Cal.App.2d 41, 54-55; People v. Peter (1932) 125 Cal.App. 657, 663; People v. Souleotes (1915) 27 Cal.App. 288, 289.) Assuming, arguendo, that Lee and the domestic violence victim were in a sexual relationship, this alone could not impute the bias found in the aforementioned authorities. Nothing in the record suggests that this victim testified against defendant or had any association with him that would cast doubt on Lee's account of what had transpired on June 25, 2019. While defense counsel correctly pointed out that Lee's interaction with the victim was unprofessional, the court noted that this conduct did not necessarily reflect on his veracity as a witness. (Cf. In re Grant (2014) 58 Cal.4th 469, 476 ["[W]hether a conviction 'reflect[s] upon an attorney's moral fitness to practice law is a far cry from [whether] . . . such conviction has some relevance . . . on the issue of a witness' credibility.' "].) Notably, according to the prosecution's motion, when Lee was confronted by investigators, he was forthright about the text messages. The court concluded that the proffered impeachment evidence lacked probative value and insinuated that its admission would create a substantial danger of undue prejudice as well as necessitate an undue consumption of time. We cannot conclude that the court's ruling fell outside the bounds of reason.
Having found no error, we reject defendant's claim of prejudicial error.
IV. The trial court did not abuse its discretion when it denied defendant's request for a continuance.
a. Background
In the aforementioned pretrial motion, the prosecution stated that it had given a letter to defense counsel on August 17, 2021, "inviting counsel to file a Pitchess motion" with regard to Deputy Lee's termination "should [he] desire." (See ante, at pp. 6-7.) On August 31, 2021, before trial commenced, defense counsel orally requested a continuance. He explained:
"Your Honor, based on information I received last Thursday and Friday in my office, I believe at this time to provide effective assistance of counsel I am going to have to file a Pitchess motion in this matter. It's based upon my 24 years of training and experience. I feel if I do not file the Pitchess, there's always going to be a question, well, what was in the personnel file on this material witness? I think I have to do it to provide effective assistance of counsel. I'm fearful this matter will all get overturned if there is a conviction if we proceed forward with the trial. So I think we err on the side of caution. Let's do the Pitchess. We can then reevaluate after the Pitchess. We can even pick a trial date today because I know the People have their witness here and they're worried about getting their witness under subpoena again. We can just bring him into chambers, order them back on a day we select today. [¶] So I think, your Honor, I have to do that motion, the Pitchess motion, and I'm asking for a continuance at this time."
The prosecution countered:
"The People provided [defense counsel] and his office with a letter, which essentially explained the general boundaries, if you will, of then Deputy Lee's termination. It centered around a domestic violence case that occurred in 2020, and it involved an inappropriate text relationship between . . . Deputy Lee, and a female confidential victim.
"These records are - when you're talking about a Pitchess motion, they're always confidential. Therefore, any statement that one of [defense counsel]'s attorneys told him that, you know, 'I can't talk to you about it,' there's - I don't believe that provides any justification that there's any material in that which affects this case whatsoever. This case occurred over a year before. It does not have the slightest, slightest wisp of tie to any kind of domestic violence situation. It doesn't involve a woman. It doesn't involve statements. It involves observations; and, therefore, I think there's sufficient information that would lead the People to feel very strongly that there's nothing that's going to be gleaned from a Pitchess motion that is in any way going to affect this case and how it's prosecuted.
"And given the fact that it's the day of trial, given the fact that the People have gone to extraordinary lengths to secure . . . Lee's participation here today, and the fact that he is someone who comes from four hours away and has to deal with employment and he has a fianc[é] and issues involved with that, I would ask that the Court deny the motion."
The court denied the motion.
b. Analysis
"Continuances shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) "Trial courts have wide discretion to determine whether such cause exists." (People v. Reed (2018) 4 Cal.5th 989, 1004.) "In making that determination, courts consider whether the moving party has acted diligently, the anticipated benefits of the continuance, the burden that the continuance would impose on witnesses, jurors, and the court, and whether a continuance will accomplish or hinder substantial justice." (Ibid.)
"[O]n appeal, a ruling on a motion for continuance is subject to review under the abuse-of-discretion standard." (People v. Mickey (1991) 54 Cal.3d 612, 660.)" 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' [Citations.]" (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked." (People v. Beames (2007) 40 Cal.4th 907, 920; see People v. Brown, supra, 33 Cal.4th at p. 901 ["' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling . . ., itself correct in law, will not be disturbed on appeal merely because given for the wrong reason."' "].)
Here, defense counsel had been made aware of the circumstances surrounding Lee's termination since at least August 17, 2021, but he waited until August 31, 2021- the first day of trial-to request a continuance to file a Pitchess motion. (See People v. Grant (1988) 45 Cal.3d 829, 844 ["Both defendant and counsel must demonstrate that they exercised due diligence and all reasonable efforts to prepare for trial."].) Apparently, defense counsel based his request "upon new information that was obtained from other attorneys in his office four or five days earlier," i.e., August 26th or 27th. However, he failed to provide any details on this information, let alone explain why it (and not the unequivocal fact that Lee and a domestic violence victim had exchanged text messages that were "flirtatious and sexual in nature") finally compelled him to request the continuance. (Cf. People v. Doolin (2009) 45 Cal.4th 390, 451 [the defendant "made only a general assertion in his written motion that he needed more time to prepare a defense to the prosecution's case in aggravation" and defense counsel "provided no explanation why he could not prepare such a defense or interview the prosecution's prospective witnesses in the six days leading up to the penalty phase"].) Additionally, the prosecution maintained that a continuance would impose a burden on Lee, who had traveled a significant distance and managed personal and job-related issues to testify at trial and would have difficulty appearing at a rescheduled proceeding. In view of the record, we cannot conclude the court's denial of defendant's continuance request fell outside the bounds of reason. V. The record supported a juror's disqualification as a demonstrable reality.
Having found no abuse of discretion, we reject defendant's claim that an "abuse of discretion violated [his] constitutional rights to due process and counsel pursuant to the 5th, 6th, and 14th Amendments of the United States Constitution." (Boldface & some capitalization omitted.)
a. Background
Juror No. 3 was one of the first 18 prospective jurors to be voir dired. The court advised the candidates to "pay close attention to the questions" and, "if there is any fact or reason why any of you might be biased or prejudiced in any way," to "disclose such reasons when you're asked to do so by the Court." The court read the charges and asked if "any member of the jury panel" "could not be fair and impartial in this case" "because of the charge[s]." None of the candidates responded. The court asked if "any member of your family or close friends or you [have] ever been arrested or charged with an offense similar to" those charged. None of the candidates responded. Later, the prosecutor asked if "you, your family, or close friends [have] ever been charged with a crime of any kind?" Juror No. 3 did not respond. He was ultimately empaneled.
On August 31, 2021, following closing arguments, the matter was submitted to the jury for deliberations. Almost immediately after the jury exited the courtroom, the court was advised by the bailiff that Juror No. 3 "heard something in closing argument which makes him believe he cannot be a fair and impartial juror." Juror No. 3 was brought back to the courtroom. He explained:
"When the questions were asked before with police and stuff like that, it didn't really come to my mind until later on. About ten years ago I was pulled over by a CHP [officer], who said she had been chasing me for speeding and hadn't been. I had never seen her, you know, behind me at all. She wasn't.
California Highway Patrol.
"I was coming home from work. I was on J-59. I pulled over onto Red Hill Road. I stopped my car on the side of the road. I got out, got in my trunk and got a bottle of ice water, cold water. Got back in my car, looked behind me, didn't see anybody. As I was pulling back onto the road, she almost hit me. She had her lights on, no siren.
"So I pulled over to let her go by. She didn't. She pulled in behind me. And I was in a little, tiny Nissan car about this tall. She walked up to my window, screaming at me and cursing at me, unsnapped her gun and pulled her gun out of her holster halfway about ten times over the next ten minutes, screaming at me the whole time about how she could arrest me, I'm lucky she doesn't shoot me, all this stuff.
"Come to find out in court - I totally beat her. But she swore that she definitely saw me when we met on the road.
"Well, she was chasing a little blue car, come to find out, because a little blue car had passed several people I knew on blind corners, and so had she, following him. My car was silver. She kept saying it was a four-door she was chasing. My car was a two-door. It just came out. You know, I don't know if I can even tell the story, you know, but that's where my opinions come from. And I didn't - maybe I should have said it earlier, but it didn't really seem like anything matched up. This was a ticket thing that I beat in court. It was no big deal. [¶] . . . [¶]
". . . She said she met me and her forward-facing radar said I was doing 85 miles an hour. And she immediately turned around and chased me, and it was - ended up when I went back to court I was charged with evading a police officer, or CHP. Like I said, there was never any chase at all, but she says I - the person evaded the police officer, passed on a double-yellow line, solid yellow line, illegally several times. [¶] And, oh, I just bought the car about ten days before. And of course I had called my insurance company, but I hadn't got a proof of insurance card yet, so she wrote me up for that, too. Ended up being a $1,900 ticket."
When the court asked whether this incident "makes it impossible or extremely difficult . . . to be fair and impartial," Juror No. 3 insisted that he "was fair and impartial up until now . . . ." When the court asked whether he would follow directions, "go back into the jury room," and "discuss the case with others," Juror No. 3 stated, "Sure."
After Juror No. 3 exited the courtroom, the following colloquy took place:
"THE COURT: But I think at this stage, given the fact that he said he could be fair and open and openly discuss the case with other jurors, we don't have a case here where a juror is refusing to deliberate. In other words, if he feels the way he feels, he has a right to go into that jury deliberation room and express his feelings and beliefs. He may be able to change some jurors' minds, and they may change his. So I'm extremely reluctant to consider removing him and substituting in another juror. [¶] . . . [¶]
"[PROSECUTOR]: So where I agree with the Court that he may be willing to deliberate - I'm not sure of that, but he said that.
"More importantly to the People, I asked the question about whether or not anyone had ever been accused of a crime. In this case, this juror is saying he was accused of the same crime, evading a peace officer. Had I known that and had I inquired about that further and found this, there is no way - I can represent to the Court there is absolutely no way I would have kept that man on this jury.
"And the information that he is disclosing now - it's not that long ago -it apparently has left a very large impression on him. It's the same crime. It's not accused of shoplifting or accused of something else. It's the same crime. We mentioned evading a peace officer. He did not answer. I don't know why he didn't answer, but when a juror withholds information, innocently or otherwise, that would have a great impact on whether or not either the defense or the prosecution would select him. I don't see how the Court can keep him.
"If this were different and he was admitting something that was more prejudicial to the defense, I don't think there would be a question here whatsoever. The fact that it's the People, however, is still - he is admitting - he is admitting to being wrongfully accused of evading. That is the very crime here, and I'm telling the Court right now as an officer of the court, had I known even a whiff of this, he would not be on this jury. And the 17 only reason why he's on this jury is because he didn't disclose it. And that question was asked
"THE COURT: Well
"[PROSECUTOR]: - and should have been answered.
"THE COURT: Now that you've mentioned that, that certainly refreshes the Court's recollection as to the question I asked all jurors, if they themselves or any close family members or close friends have ever been charged with an offense similar to that, and he didn't raise his hand. [¶] . . . [¶]
"Is it reasonable for him to have not answered that question when it is so apparent now that that feeling he has is a deep-rooted, deep feeling? And he's had it - I don't see any excuse for him not - not revealing it to the Court and counsel.
"This case is a little different now, from the Court's perspective, in that before [the prosecution] brought up that point I had not thought about that. I should have, but I didn't think about it. He's - we now have an additional issue of a juror withholding critical information because, as he's mentioned, he was charged with evading a police officer, and he won it in court.
"So, . . . it appears that the Court has to - has to - must based upon his failure to reveal that. And I don't see any - I don't see any good cause for him not revealing it."
Following a brief recess, the court pronounced:
"I've given this some thought, and this is - as I said before, this is not a case where [Juror No. 3]'s refusing to deliberate. It's clear he's already made up his mind, and it's also clear to me that he was given - he was asked a direct question. And given the nature of the charges in this case and the nature of his encounter with this CHP officer, it's clear to me that that is something that he should have revealed. He did not.
"And I'm not making a finding that he deliberately withheld it, but, nevertheless, I don't find that there's good cause for him not to have revealed it. And the fact that he didn't reveal it deprived counsel in this case of an opportunity to exercise a peremptory challenge or a challenge for cause. So I'm going to - I'm going to discharge him as a juror because he failed to reveal information that the Court feels was a critical piece of information in deciding this case."
b. Analysis
"The impartiality of prospective jurors is explored at the preliminary proceeding known as voir dire." (In re Hitchings (1993) 6 Cal.4th 97, 110.)" 'Voir dire examination serves to protect [the right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.' [Citation.]" (Id. at pp. 110-111, fn. omitted.) "A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct." (Id. at p. 111.) "Without truthful answers on voir dire, the unquestioned right to challenge a prospective juror for cause is rendered nugatory." (Ibid.) "Such false answers or concealment on voir dire also eviscerate a party's statutory right to exercise a peremptory challenge and remove a prospective juror the party believes cannot be fair and impartial." (Ibid.)" '[J]uror concealment, regardless whether intentional, to questions bearing a substantial likelihood of uncovering a strong potential of juror bias, undermines the peremptory challenge process just as effectively as improper judicial restrictions upon the exercise of voir dire by trial counsel seeking knowledge to intelligently exercise peremptory challenges.' [Citations.]" (Id. at pp. 111-112.)
"Thus,' "[w]here a party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing [sic] his right of peremptory challenge."' [Citation.] 'The prosecution, the defense and the trial court rely on the voir dire responses in making their respective decisions, and if potential jurors do not respond candidly the jury selection process is rendered meaningless. Falsehood, or deliberate concealment or nondisclosure of facts and attitudes deprives both sides of the right to select an unbiased jury and erodes the basic integrity of the jury trial process.' [Citation.]" (In re Hitchings, supra, 6 Cal.4th at p. 112.)
"A trial court may discharge a juror at any time, including during deliberations, based on a showing of 'good cause' that the juror is 'unable to perform his or her duty.'" (People v. Debose (2014) 59 Cal.4th 177, 200 (Debose), quoting § 1089.) For instance, good cause exists when an empaneled juror cannot be fair and impartial. (People v. Warren (1986) 176 Cal.App.3d 324, 327.)" 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under . . . sections 1089 and [former] 1123 that he is unable to perform his duty."' [Citations.]" (People v. Wilson (2008) 44 Cal.4th 758, 823.) "The ultimate decision to retain or to discharge a juror rests within the court's sound discretion." (Debose, supra, at p. 200.)
" 'We review a trial court's decision to discharge a juror under an abuse of discretion standard, and will uphold such discretion if the record supports the juror's disqualification as a demonstrable reality.' [Citation.] 'The demonstrable reality test entails a more comprehensive and less deferential review' than is typical under the abuse of discretion standard. [Citation.] 'It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion . . .' that the juror was unable to perform his or her duties. [Citation.] Although a reviewing court will not reweigh the evidence, we 'must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' [Citation.] In reaching that conclusion, we 'will consider not just the evidence itself, but also the record of reasons the court provides.' [Citation.]" (Debose, supra, 59 Cal.4th at pp. 200-201.)
Here, Juror No. 3 revealed his negative experience with law enforcement for the first time after the matter was submitted for deliberations. While the court initially gave deference to Juror No. 3's assertion that he could still remain fair and impartial, a discussion with the prosecution refreshed its recollection of the voir dire examination. The court had advised the candidates to "pay close attention to the questions" and both the court and the prosecution had directly asked prospective jurors whether they, their family members, or their close friends had ever been charged with or arrested for "a crime of any kind" or "an offense similar to" the charged crimes. Juror No. 3, however, failed to disclose his aforementioned experience, that he had been accused of speeding, and that he had been charged with evading a police officer. Given the similarity between Juror No. 3's charge and those in the instant case, the prosecution emphasized that it would have exercised a peremptory challenge. Furthermore, having observed Juror No. 3's demeanor, the court noted his "deep-rooted" antipathy and could not fathom why he decided to withhold such "critical information." (See People v. Wilson, supra, 44 Cal.4th at p. 780 ["The trial court was in the best position to assess the juror's state of mind, based on . . . conflicting responses, . . . demeanor, . . . vocal inflection and other nonverbal cues."].) "The court reasonably concluded that these circumstances presented a demonstrable reality that Juror No. [3] could not be a fair and impartial juror, despite [his] statements to the contrary." (Debose, supra, 59 Cal.4th at p. 202.)
DISPOSITION
The felony conviction on count I is reversed and the sentence thereon is vacated. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., POOCHIGIAN, J.